Box Turtle Bulletin

Perry v. Schwarzenegger: first day highlights

As the trial is not, at present, available on YouTube, I am relying on the excellent liveblogging provided by the Courage Campaign’s Rick Jacobs. Here is how the first day went:

Ted Olson gave his opening remarks, laying out his case.

During this trial, Plaintiffs and leading experts in the fields of history, psychology, economics and political science will prove three fundamental points:

First – Marriage is vitally important in American society.

Second – By denying gay men and lesbians the right to marry, Proposition 8 works a grievous harm on the plaintiffs and other gay men and lesbians throughout California, and adds yet another chapter to the long history of discrimination they have suffered.

Third – Proposition 8 perpetrates this irreparable, immeasurable, discriminatory harm for no good reason.

Then Therese “Terry” Stewart, counsel for San Francisco, asserted that Proposition 8 was economically disadvantageous to the city. He argued that perceptions of second class citizenship lead to hate crimes, a cost that can be avoided.

Charles Cooper, counsel for Protect Marriage is going to show that marriage is about children in a nuclear family, that gay people are powerful and not disadvantaged and that gay marriage would lead to higher divorce rates and lower rates of marriage. It appears that he will be relying predominantly on the testimony of David Blankenhorn.

The supporters of Proposition 8 seem to have argued the peculiar idea that none of the ads they ran encouraging voters to vote for the proposition should be admissible. The judge isn’t buying it, but the ridiculous Gathering Storm ad was not allowed because it was produced after the election.

The proponents, Jeffrey Zarrillo, Paul Katami, Kristin Perry, and Sandra Stier testify about how not being allowed to marry disadvantages their lives and makes them feel unequal. Opposing counsel chooses not to cross examine the women.

Finally Professor Nancy Cott, author of Public Vows: A History of Marriage and the Nation provides testimony about how marriage is not just a contract between two people but a contract between individuals and their state. She discusses the history of marriage in our nation, how it is unique from other nations, and how it was the definitive indication of a free people.

From the liveblog

The ability to marry, to say I do, is a civil right. It demonstrates liberty. This can be seen in American history when slaves could not legally marry. As unfreed persons, they could not consent. They lacked that very basic liberty of person to say I do which meant they were taking on the state\’s obligates and vice versa. A slave could not take on that set of obligations because they were not free.

When slaves were emancipated, they flocked to get married. IT was not trivial to them by any means. They saw the ability to replace the informal unions with legalized vows that the state would protect. One quotation, the title of an article, “The marriage covenant is the foundation of all our rights,” said a former slave who became a northern soldier. The point here is that this slave built his life on that civil right.

She refers to Dred Scott who tried to claim he was a citizen. He was denied that claim. Justice Tawny spent three paragraphs saying that marriage laws in the state in which Dred Scott was prevented him from marrying a white woman was a stigma that made him less than a full citizen. It was a piece of evidence that shows that he could not be a full citizen.

This is some pretty heady stuff.

Perry v. Schwarzenegger: a very Republican conversation

Vaughn R. Walker, the Chief Judge of the United States District Court for the Northern District of California, is a Republican. He was nominated for the bench by Republican President George H.W. Bush.

And though independently minded, Walker has taken positions in the past that show him not to be universally a gay advocate. In fact, Walker’s first nomination (by President Ronald Reagan) was held up due to controversy over a gay-related issue. Walker was representing the US Olympic Committee in their demand that the Gay Olympics (now the Gay Games) not be allowed to use “Olympics” in their name.

So when lead co-counsel Republican Ted Olson speaks to the court, it will be a very Republican conversation. This is important to recall when anti-gay activists scream about judicial activism and the bias of the court – which they have already begun to do.

Perry v. Schwarzenegger opening statements not to be taped

From the Washington Post

The Supreme Court on Monday morning temporarily blocked a federal judge in San Francisco from showing on YouTube proceedings from a trial that will determine whether a ban on same-sex marriage is unconstitutional.

The court’s decision is not the final word; the stay sought by same-sex marriage opponents expires Wednesday. The court said that will permit justices “further consideration.” The trial is scheduled to start Monday.

Let us hope that the rest of the trial will be available to the public and not limited to those handful able to obtain a seat in the San Francisco courthouse.

The likely real reason for Hak-Shing William Tam pulling out of Perry v. Schwarzenegger

Hak-Shing William Tam was one of five defendant-intervenors who petitioned the court to be allowed to defend Proposition 8 in Perry v. Schwarzenegger. Today he requested that he be allowed to withdraw from the case (pdf).

He listed his reasons as being due to his fears of recognition and reprisals. He claimed that his life, and that of his family, could be in danger.

As evidence, he submitted examples of threats against him during the campaign including vandalism (his car’s tire was punctured while parked on the street without a Prop 8 bumper sticker but in front of a house with a yard sign), theft (some girl tried to steal his yard sign but ran away), death threats (someone left a vulgar comment on a YouTube video which Tam claims to “take very seriously”) and racism (other vulgar comments on his YouTube video).

However, his concerns about being recognized didn’t seem to have dissuaded Bill Tam from giving interviews and making videos and participating in debates during the campaign. And the worrisome issues didn’t give him enough concern to keep him from petitioning the court in May 2009 to be added as a defendant. And Tam provides no instances since May in which anyone recognizing him has been anything other than “friendly”.

He hasn’t even removed from availability the DVD he has called “FAQ: Same-Sex Marriage & Homosexuality” which explains the “Possible Cause of Same Sex Attraction and the Healing” (he has “many friends who went from homosexuality back to heterosexuality“).

But now Bill Tam has suddenly become reduced to a pile of quivering terror. Frankly, I don’t buy it.

However, in his declaration Tam makes a comment that may give us a better understanding of the real reason why the legal team defending Proposition 8 wants him off the case.

A second reason that I want to withdraw as a Defendant-Intervenor is that I do not like the burden of complying with discovery requests. I do not like people questioning me on my private personal beliefs. I do not like people questioning me regarding fourteen year old articles I wrote in the Chinese language to my constituents. I don’t like people focusing on a few articles I posted on my website regarding homosexuality and disregarding the 50 or 60 other articles I posted regarding family values subjects. I do not like the exposure of my history to people who are antagonistic to me.

He doesn’t say what was in the articles that “people” were questioning him about, but the AP gives us a clue:

In the months leading up the trial, lawyers for two unmarried same-sex couples on whose behalf the case was brought complained that Proposition 8’s sponsors were withholding evidence to which the plaintiffs were entitled by citing a letter they had uncovered written by Tam to members of his church during the campaign.

In the letter, Tam outlined what he described as the disastrous consequences for allowing gays to marry in California.

“One by one, other states would fall into Satan’s hands,” he wrote. “Every child, when growing up, would fantasize marrying someone of the same sex. More children would become homosexuals.”

The contents could come up in the trial because one of the issues is whether the measure’s backers were motivated by anti-gay bias.

But even Tam’s public statements during the campaign show clear anti-gay bias. In October 2008, Tam told a reporter with the San Jose Mercury News, “We hope to convince Asian-Americans that gay marriage will encourage more children to experiment with the gay lifestyle and that the lifestyle comes with all kinds of disease.”

That is likely among the tamer of Tam’s proclamations on the subject. I expect that the fourteen year old articles read like the denunciations of Jeremiah. And his website and history would probably provide a very clear illustration of the motivation of those who collected signatures, contributed time and money, and worked diligently to take away the basic rights of their gay neighbors.

Prop 8 supporters fight to keep cameras out of the courtroom

Judge Vaughn Walker has decided that the Olson-Boies case to find Proposition 8 in violation of the US Constitution will be recorded and available on YouTube. Those defending the proposition and seeking to keep California from legally recognizing same-sex marriages are desperate that this not happen.

Their public argument is that video coverage would turn the case into a “media circus” and that they would be targets of retribution. In a fiery denunciation of the judge’s decision, National Organization for Marriage’s Maggie Gallagher raged:

On Oct. 22, the Heritage Foundation released a report titled “The Price of Prop. 8,” which concluded that “supporters of Proposition 8 in California have been subjected to harassment, intimidation, vandalism, racial scapegoating, blacklisting, loss of employment, economic hardships, angry protests, violence, at least one death threat, and gross expressions of anti-religious bigotry.”

To deliberately and needlessly expose these people to a new wave of publicity and attacks by televising the trial is outrageous.

And indeed one of the five official sponsors of Proposition 8 (whom I’ve never heard of) has requested to be removed from the case.

On Friday, Tam told U.S. District Court Judge Vaughn Walker that he fears for his and his family’s safety. In his court filing, Tam’s lawyers say the trial will bring him unwanted publicity and expose him to retribution from gay marriage supporters.

Tam also says the case has been more time-consuming and more intrusive into his personal life than expected.

But what Gallagher and Tam and the other supporters of Proposition 8 fail to mention is that they volunteered for this case. In fact, when Governor Schwarzenegger and Attorney General Brown expressed no interest in defending the initiative, Tam petitioned the court requesting that he be allowed to do so.

And their concern that they be identified or targeted seems disingenuous. The proceedings are not going to occur in a secluded and private setting where the witnesses will be kept a secret. Every witness will be known and every testimony blogged about.

Tam certainly got more media attention from dropping out of the case than he would have if he’d just gone through with it.

And yet they are frantic that there be no video. The supporters of Prop 8 appealed the judge’s decision, but yesterday they were denied (SJ Merc)

A federal appeals court on Friday rejected a bid by Proposition 8 supporters to block the broadcast of the upcoming trial involving a challenge to California’s same-sex marriage ban, refusing to stop a plan to post the proceedings on YouTube.

In a one-paragraph order, the 9th U.S. Circuit Court of Appeals said that the Proposition 8 campaign had not presented reason for “intervention by this court” in the broadcast issue.

But this wasn’t the end of their effort. They have now made an emergency application to the Supreme Court asking Justice Kennedy to block camera coverage. The Olson-Boies team has until noon on Sunday to respond (the case starts on Monday).

I do not believe Gallagher and the Prop 8 supporters’ public reasons for wishing to keep the trial from being recorded. I think that their true motivation is better understood from another argument they made. (Law.com)

Lawyers representing the Yes on 8 campaign objected to any broadcast beyond an overflow room in the San Francisco federal building, arguing that witnesses would be intimidated, or change their testimony. [emphasis added]

Change their testimony?

If their witnesses are telling the truth, wouldn’t their testimony be the same in either case?

It seems not. And here is why.

There is a record made of every word said at every trial. But this record generally is not readily accessible to the public. Words said, arguments made, all are lost to dusty volumes and forgotten.

Further, few people ever hear or read what any individual witness has to say. In a high profile trial, reporters will provide the gist of a testimony or paraphrase but the public doesn’t really hear or see

But a video recording of testimony makes their words accessible and permanent. There will be transcripts posted across the internet and for the rest of our lives there will be ready and immediate access to video of each witness making statements in support of banning gay Californians from marrying.

And clearly some of their witnesses are reluctant to testify publicly. They want to say words that the public will never hear and for which they will never be held accountable.

What is it that they don’t want the public to know? What are they reluctant to say in front of the voters who they claim to defend?

“Those who want to ban gay marriage spent millions of dollars to reach the public with misleading ads, rallies and news conferences during the campaign to pass Prop. 8. We are curious why they now fear the publicity they once craved,” said Chad Griffin, Board President of the American Foundation for Equal Rights. “Apparently transparency is their enemy, but the people deserve to know exactly what it is they have to hide.”

I suspect that regardless of the outcome of the lawsuit, this case is a winner for us. This lawsuit will expose the intents, methods, and agenda of those who oppose equality. And video of their testimony will be, I believe, a very valuable tool to achieving equality.

And voter initiative battles will never be the same.

Gallagher and crew aren’t afraid that they will be targeted for hateful email or a vengeful grocery clerk squishing their tomatoes. They aren’t worried that their witness will have someone call them a bigot.

I think that what they truly fear is that what they have to say in court will look ugly and obscene when played on the news or in commercials during the next “protect marriage” battle.

Prop 8 Campaign Attitudes to be Revealed

One of the arguments of the Olson/Boies legal team that is suing to overturn California’s Proposition 8, is that the motivation and intent behind the anti-gay marriage amendment was one of animus directed towards gay people as a group. This might prove to be an effective strategy; in Romer v. Evans, the Supreme Court of the United States threw out Colorado’s anti-gay Amendment 2 partly because it established a class of people in order to enact discrimination upon them.

To advance this argument, they subpoenaed the correspondence of the Yes on 8 campaign. Naturally, the campaign resisted, but Judge Vaughn Walker agreed with the Olson/Boies argument. (SJ Merc)

Denying a request to shield the information, U.S. District Chief Judge Vaughn Walker said the Protect Marriage campaign had failed to show that providing private e-mails, memos and reports would inhibit the political activities of gay marriage opponents or subject them to unbridled harassment.

“The First Amendment qualified privilege proponents seek to invoke, unlike the attorney-client privilege, for example, is not an absolute bar against disclosure,” Walker wrote in an 18-page order. “Rather, the First Amendment qualified privilege requires a balancing of the plaintiffs’ need for the information sought against proponents’ constitutional interests in claiming the privilege.”

The judge agreed with lawyers for two unmarried same-sex couples who have sued to strike down the ban, known as Proposition 8, that confidential communications between the campaign’s leaders and professional consultants could reveal a rationale for denying gays the right to wed that is relevant to the case.

The most relevant information will be in relation to what messages the campaign decided not to present to voters as this will put those they did use in perspective.

But I’m sure that the virulent homophobia and blind hate expressed in the communications will also go far to illuminate the attitudes of the campaign against marriage. Unless, of course, the Yes on 8 Campaign always spoke in loving terms about gay people and couples (hey, is that a pig I saw fly past my window?).

Why Ted Olson Supports Marriage Equality

Theodore B. Olson (Justin Maxon/The New York Times)

The New York Times has an in-depth profile of Ted Olsen, the conservative half of the Conservative/Liberal doppelganger legal team challenging California’s Proposition 8 banning same-sex marriage. When Ted Olson announced that he was joining the effort to overturn the ban in federal court, it came as an unimaginably shock to those who knew his work. After all, this is lawyer who had worked to dismantle affirmative action and worked in George W. Bush’s administration where he argued for the expansion of the president’s wartime powers to combat terrorism. This new crusade left his compatriots baffled:

“For conservatives who don\’t like what I\’m doing, it\’s, ‘If he just had someone in his family we\’d forgive him,\’ ” Mr. Olson said. “For liberals it\’s such a freakish thing that it\’s, ‘He must have someone in his family, otherwise a conservative couldn\’t possibly have these views.\’ It\’s frustrating that people won\’t take it on face value.”

But Olson sees his position as perfectly logical and consistent with his anti-affirmative action positions: He believes that California’s Prop 8 represents governmental-mandated discrimination. And he intends to use Justice Antonin Scalia’s blistering dissent in Lawrence v. Texas as an argument for overturning the ban. Scalia acknowledged in his dissent that the majority in Lawrence had indeed opened the door to same-sex marriage. Already, the Justice Department, in a separate case, cited Scalia’s dissent in declaring that the Defense of Marriage Act has nothing to do with promoting procreation. That argument will certainly be an important component of this case as well. In a twist of delicious irony, his angry dissent may turn out the be a huge gift to the LGBT community.

Meanwhile, the parties in Perry v. Schwarzenegger will appear before Judge Vaughn Walker in U.S. District Court in San Francisco today to discuss who will be arguing the case. One issue is whether the ACLU, Lambda Legal, the National Center for Lesbian Rights, the City of San Francisco, or the Campaign for California Families will be allowed to intervene and become parties to the lawsuit. The first three groups sought to intervene despite earlier opposing the lawsuit. Olson’s legal team opposes the move, citing the LGBT coalition’s earlier opposition to the lawsuit. Chris Geidner has a good rundown on today’s hearing.

Olson is a veteran of fifty-five Supreme court cases, having won forty-four of them in his career.

Boies and Olson to go after ‘Yes on 8’ Campaign

I have been following the federal challenge to Prop 8, Perry v. Schwarzenegger, and thought I would give BTB readers an update (there’s not much in the rest of the LGBT press).

As you might remember, former Bush v. Gore foes Boies and Olson sparked controversy among gay legal rights groups after teaming up to file a federal challenge to Prop. 8 in California District Court. Organizations like Lambda Legal, which have spent years focusing on incremental legal wins are afraid it’s not the right time to put all the movement’s chips on the table, but seeing as Boies and Olson are going ahead anyway, they want in on the action and have asked to join the suit.

Judge Walker is set to hear opposing arguments tomorrow over whether they should be allowed in, a motion Boies and Olson have opposed. My guess is that the judge will allow Lambda Legal, the City of San Francisco, and similar organization to join the suit, or at least that’s what I hope; these organizations have been fighting the good fight long before the fame-mongering pair came on the scene.

Today, all parties to the suit filed another round of “case management statements,” proposals that outline what the trial will cover, what legal questions will be addressed, and which sort of evidence will be gathered and presented.  What is interesting about these statements is that the case is shaping up to be much broader than the state challenge to Prop. 8, which hinged on the technical distinction between an “amendment” and a “revision.”

Crucially, the plaintiffs plan to go after the Yes on 8 Campaign to show that they were motivated by anti-gay animus. This will involve having the Yes on 8 people testify and hand over documents relevant to the campaign.

If some gay rights groups were frustrated by the legal language and fine lines involved in the state challenge, this is looking like it will be the big fight they wanted.

Stay tuned.

Three Pro-Gay Groups Respond To AFER’s Letter

Chris Geidner has gotten some reactions from the National Center for Lesbian Rights, Lambda Legal, and the ACLU concerning the letter from the America Foundation for Equal Rights (the group behind the Olson and Boies lawsuit challenging Prop 8) sent to those groups demanding that they not seek to intervene in the suit:

Looking at [AFER board president Chad] Griffin\’s letter, it is clear that — far from being blindsided by the Perry lawsuit — the LGBT legal organizations were well aware of and chose not to participate in the filing of this lawsuit. It is also clear, though, that the groups have been working with the lawyers for the case since its filing to discuss strategy and a way to “integrate” the groups more fully in the case.

When contacted Thursday, James Esseks, the co-director of the ACLU\’s LGBT Rights Project, said of the distinction between the groups\’ initial response and their filing on Wednesday, “People can disagree about when and whether to jump into the pool, but once you do it makes sense to swim as hard as possible to get to the other side. . . . We\’re all in the pool; it\’s not just those plaintiffs.”

..Toward the beginning of Griffin\’s letter, he stated of the groups that “it is inconceivable that you would zealously and effectively litigate this case if you were successful in intervening.” Esseks, of the ACLU LGBT Rights Project took strong objection to that, saying, “Any suggestion that [the groups] would want to lose a marriage case is off-the-wall to me. It\’s unfathomable.” Likewise, Shannon Minter, the legal director at NCLR responded in a statement that “Our only focus right now is on doing everything we can to help win the case.”

I don’t think the letter from AFER suggests that any of the groups would actually want to lose the case. What it does suggest is that a group that doesn’t believe that a case should have been filed may not be as effective as those who do.

Chris argues that the groups are right to try to intervene in order to broaden the factual record for the inevitable appeals to the appelate court.

Anti-Prop 8 Legal Team to Pro-Gay Groups: Back Off

The American Foundation for Equal Rights has released a letter they wrote to the National Center for Lesbian Rights, Lambda Legal, and the ACLU of Southern California, asking the three groups not to intervene in the Boies and Olson challenge to California’s Prop 8 in federal court.  They recounted the many ways in which the three groups had previously opposed the lawsuit and raise a very legitimate concern now that those groups want to enter the lawsuit on the side of the plaintiffs:

In public and private, you have made it unmistakably clear that you strongly disagree with our legal strategy to challenge Prop. 8 as a violation of the Due Process and Equal Protection Clauses of the United States Constitution…. Having gone to such great lengths to dissuade us from filing suit and to tar this case in the press, it seems likely that your misgivings about our strategy will be reflected—either subtly or overtly—in your actions in court.

The letter provides an interesting detail surrounding the amicus briefs filed in the case calling for Prop 8 to be declared unconstitutional. According to the letter:

Even after you filed an amicus curiae brief urging the district court to grant our motion for a preliminary injunction against the enforcement of Prop. 8, you refused to characterize your position as one of “support.” Indeed, Jennifer Pizer of Lambda Legal went so far as to insist that we alter a press release that described your amicus curiae brief as “supporting” our suit. In response, we issued a second release addressing her concerns.

The letter also details several instances in which the Boies and Olsen team and AFER reached out to the three groups. After all that, AFER says that they “remain willing to work closely” with them, but not as co-council:

Your intervention would create a complex, multi-party proceeding that would inevitably be hampered by procedural inefficiencies that are directly at odds with our goal—and the goal of Chief Judge Walker—of securing an expeditious, efficient, and inexpensive resolution to the district court proceedings. As a result of your intervention, we could be mired in procedurally convoluted pre-trial maneuvering for years—while gay and lesbian individuals in California continue to suffer the daily indignity of being denied their federal constitutional right to marry the person of their choosing. … Delaying equal marriage rights in California serves none of our interests.

[Hat tip: Rex Wockner]

Click here to read the complete letter

Three Pro-Gay Groups Seek To Elbow Their Way Into Prop 8 Lawsuit

My first reaction on learning that Attorneys Theodore Olson and David Boies were filing a lawsuit in federal court to challenge the constitutionality of Prop 8, I was cool to the idea. But now with two other lawsuits from Massachusetts which are also challenging the Defense of Marriage Act, as well as the frustrations many of us are feeling over the distinctly unfierce advocacy taking place in Washington, I’ve changed my mind. I’m glad that Olson and Boies are going forward.

That said, I have to wonder what’s going on with three pro-gay groups who have petitioned the court to be admitted as parties to the case. The three groups — American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights — have asked the judge to allow them represent three gay community groups in the lawsuit seeking to overturn Proposition 8.

These same groups were among the eight who immediately opposed the lawsuit when it was first announced. Last week, they reversed their position and filed amicus briefs in support of the plaintiffs, which is, I think, a very positive move. They seem to have warmed to the idea, much as I have.

But now all of the sudden they want to become parties of the lawsuit itself, even though they wanted nothing to do with the move in the beginning. Olson and Boies oppose their petition, saying that involving more groups would delay and unnecessarily complicate the proceedings. I agree. It worries me that one of the more important LGBT cases making its way in the federal courts could wind up having four different captains trying to pilot the ship. That alone should worry us.

But there’s something else that’s troubling. Kristin Perry, Sandra Stier, Paul Katami, and Jeffrey Zarrillo are the four Californians named as plaintiffs in the suit. They have the grievance, they’ve selected their lawyers, and they are ready to go to court to have their rights upheld. That’s what plaintiffs do in lawsuits. And so it seems to me that those four plaintiffs should have a right to have their case argued on their behalf by lawyers of their own choosing. They shouldn’t have to contend with three other outside groups with differing agendas who think they know better on how to try the case — especially when their first stab at knowing better was to publicly denounce the lawsuit to begin with.

Ex-Gay Question to be Central to Federal Lawsuit

In Perry v. Schwarzenegger, the federal lawsuit by Ted Olson and David Boies to overturn Proposition 8, the judge has decided against placing a hold on Prop 8 and instead is opting for a swift consideration. This is the position that was requested by Gov. Schwarzenegger and Atty. Gen. Brown; they felt that placing a hold would lend to confusion for all parties.

An article in the San Francisco Chronicle reveals that Olson and Boies will be relying on the precident set by Romer v. Evans in which the US Supreme Court determined that states cannot deny rights to gay people as a class based solely on animus.

The attorneys behind the challenge to California’s Proposition 8 plan to argue during a pretrial hearing Thursday that by stripping gays of the right to wed, the voter-approved ban runs afoul of America’s founding framework in the same way — and for the same reason.

“Romer is a strikingly similar situation to what we have here. You had a ballot initiative, a majority vote of the people, taking away a right,” said Theodore J. Boutrous Jr., a member of the legal team led by former U.S. Solicitor General Theodore Olson and veteran trial lawyer David Boies. “And there was no justification or rationale other than disapproval by that majority of that group.”

This case also will ask a question that is at the core of all civil rights legal issues: are gay people really a distinct group of people. Or, in other words, is sexuality immutable.

U.S. District Chief Judge Vaughn R. Walker on Tuesday issued a tentative order to fast-track the case in his San Francisco court.

Among the questions he said he wants covered at trial are whether sexual orientation is unchangeable, if permitting same-sex marriage “destabilizes” traditional unions and whether Proposition 8’s ballot history demonstrates the measure had “discriminatory intent.”

There is little doubt that ex-gays and ex-gay groups will testify before court. And there is little doubt that they will claim “change”.

However, will they be truthful? Will they admit that “change” is only in perspective, in behavior, in identity, but not in attractions?

Sadly, the history of ex-gay activists suggests that they will seek to confuse the court and to leave the impression that orientation can be “overcome through the power of Jesus Christ”. I hope I’m wrong.

CA Governor Refuses To Defend Prop 8

Last Week, California Attorney General Gerald Brown filed a brief as a defendant in Perry v. Schwarzenegger, et al., the court challenge against Proposition 8 brought by high-profile attorneys Ted Olson and David Boies. In that brief, Brown refused to defend the constitutionality of Prop 8, calling it a violation of the Due Process clause and the Equal Protection clause of the U.S. Constitution.

Today, Gov. Arnold Schwarzenegger declined to defend the constitutionality of Prop 8, telling the Federal Court judge that the legality of the measure is for the courts to decide. The governor’s neutral stance means that there is no statewide official willing to defend Prop 8 in federal court.

CA Attorney General Brief: Prop 8 Violates 14th Amendment

What a contrast between the California Attorney General and the U.S. Department of Justice. On the same day in which the Obama administration filed a brief before the U.S. Supreme Court defending the so-called “Defense of Marriage Act,“ California Attorney General Jerry Brown filed a very different brief in Perry v. Schwarzenegger, the Prop 8 challenge brought by Ted Olson and David Boies.

In the brief filed on behalf of the State of California (PDF: 128KB/11 pages), Brown notes that:

The Attorney General of California is sworn to uphold the Constitution of the United States in addition to the Constitution of the State of California. Cal. Const., art. XX, § 3. The United States Constitution is the “supreme law of the land.” Taking from same-sex couples the right to civil marriage that they had previously possessed under California\’s Constitution cannot be squared with guarantees of the Fourteenth Amendment. Accordingly, the Attorney General answers the Complaint consistent with his duty to uphold the United States Constitution, as Attorney General Thomas C. Lynch did when he argued that Proposition 14, passed by the California voters in 1964, was incompatible with the Federal Constitution.

The complaint filed by Olson and Boies (PDF: 140KB/11 pages) is broken down into forty-nine paragraphs. The response by the Attorney General addresses each of the numbered paragraphs in the original complaint. The response begins with a stipulation that California’s Domestic Partnerships are not equal to civil marriage and therefore violates the Fourteenth Amendment to the U.S. Constitution”

In response to paragraph 1 of the Complaint, the Attorney General admits that in November 2008 California adopted Proposition 8; that Proposition 8 amended Article I of the California Constitution by adding section 7.5 which provides that “[o]nly marriage between a man and a woman is valid or recognized in California;” and that the effect of Proposition 8 is to deny gay men and lesbians and their same-sex partners access to civil marriage in California and to deny them recognition of their civil marriages performed elsewhere. The Attorney General admits that lesbians and gay men and their same-sex partners may form domestic partnerships in California pursuant to California Family Code sections 297 through 299.6, and that such domestic partnerships are not equal to civil marriage, and that this unequal treatment denies lesbians and gay men rights guarantees by the Fourteenth Amendment to the United States Constitution.

…In response to paragraph 7 of the Complaint, the Attorney General admits that Proposition 8 denies same-sex couples the right to civil marriage in California, and that it therefore violates the Fourteenth Amendment to the United States Constitution.

…In response to paragraph 23 of the Complaint, the Attorney General admits that California\’s domestic partnership law gives same-sex couples many of the substantive legal benefits and privileges that California civil marriage provides; that the domestic partnership law does not permit the marriage of same-sex couples; and that the California Supreme Court has noted at least nine ways in which statutes concerning marriage differ from corresponding statutes concerning domestic partnerships.

Brown describes the reasons that gays and lesbians should be treated as a suspect class deserving of equal protection:

…In response to paragraph 20 of the Complaint, the Attorney General admits that sexual orientation is a characteristic that bears no relation to a person\’s ability to perform or contribute to society and that the sexual orientation of gays and lesbians has been associated with a stigma of inferiority and second-class citizenship, manifested by the group\’s history of legal and social disabilities.

Brown also invokes Loving v. Virginia, the 1967 U.S. Supreme Court ruling which struck down laws banning marriage between people of different races:

In response to paragraph 35 of the Complaint, the Attorney General admits that the United States Supreme Court found in Loving v. Virginia, 388 U.S. 1. 12 (1967), that the “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

The brief then addresses the Due Process claims:

In response to paragraph 38 of the Complaint, the Attorney General admits that, to the extent that Proposition 8 took from Plaintiffs their previously held fundamental right to marry, the measure violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution on its face.

…In response to paragraph 39 of the Complaint, the Attorney General admits that, to the extent that Proposition 8 took from Plaintiffs their previously held fundamental right to marry, the measure violates the Due Process clause of the Fourteenth Amendment to the United States Constitution on its face; and that by denying civil marriage to gay and lesbian same-sex couples that it affords to heterosexual opposite-sex couples, the California Constitution denies gay and lesbian couples and their families the same dignity, respect, and stature afforded families headed by a married couple.

And the Equal Protection claims:

In response to paragraph 42 of the Complaint, the Attorney General admits that Proposition 8 restricts civil marriage in California to opposite-sex couples; that gays and lesbians are therefore unable to enter into a civil marriage with the person of their choice; that the California Constitution treats similarly-situated persons differently by providing civil marriage to opposite-sex couples, but denying it to same-sex couples; that domestic partnership under California law is available to same-sex couples, but is not the equivalent of civil marriage; that even if domestic partnership were the substantive equivalent to civil marriage, it would still be unequal to deny civil marriage to same-sex couples because, as recognized by the California Supreme Court in In re Marriage Cases, domestic partnership would carry with it a stigma of inequality and second-class citizenship; that under the California Constitution, gay and lesbian same sex couples are unequal to heterosexual opposite sex couples; and that article I, section 7.5 of the California Constitution discriminates on the basis of sexual orientation.

This is an exceptional brief, absent all of the pernicious anti-gay ramblings of the Obama administration’s brief before the U.S. Supreme Court. After reading the DOJ brief yesterday, this one was a breath of fresh air. Look at these two briefs side-by-side. It will be clear that only one was written by a “fierce advocate” for the Constitutional principles of Due Process and Equal Protection.

Boies and Olsen on Hardball

Ted Olson and David Boies appeared on Chris Matthews’ Hardball to talk about their federal lawsuit challenging California’s Prop 8. Matthews counted up the votes in the Supreme Court based on Lawrence vs. Texas and declared, “You’ve got a good shot at this it seems to me.” The best line comes near the end, when Olson declared:

You don’t take your constitutional rights to the ballot box. They are protected by the Constitution. That is why we have a Constitution and that’s why we have courts.